Ninth Circuit Determines That George Costanza Was Right!—In Limited Circumstances, Whales And Seals Are Fish (Not Mammals)

Whitney Jones RoyWhitney HodgesBy Whitney Jones Roy and Whitney Hodges on Posted in Environmental, Recent Cases - Environmental

Makah Indian Tribe, et al. v. Quileute Indian Tribe et al., 813 F.3d 1157 (9th Cir. 2017).

Defying the universal notion that whales and seals are, in fact, mammals, the Ninth Circuit recently affirmed in part, and reversed in part, the Western District Court of Washington’s judgment determining that such species qualify as fish in limited circumstances relating to tribal fishing rights in western Washington. Id. at 1159. While the direct determination that the use of the word “fish” may occasionally include some marine mammals may not be universally enlightening, this case painstakingly details the rules to be utilized when interpreting sovereign treaties—a tool helpful to almost any jurisdiction. (The opinion also quotes from the television show “Seinfeld,” validating George Costanza’s proclamation that whales are fish.) Continue Reading

Ninth Circuit Finds District Court Sharply Deviated from Existing Authority on CERCLA Cleanup Costs Between Military Contractor and U.S. Government When it Allocated 100 Percent of Liability to Military Contractor

Whitney Jones RoyWhitney HodgesBy Whitney Jones Roy and Whitney Hodges on Posted in Environmental, Recent Cases - Environmental

TDY Holdings v. United States, et al., 872 F.3d 1004 (9th Cir. 2017).

TDY brought suit for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the U.S. government relating to environmental contamination at TDY’s manufacturing plant. The district court granted judgment in favor of the government after a 12-day bench trial and allocated 100 percent of past and future CERCLA costs to TDY. On appeal, the Ninth Circuit held that the district court sharply deviated from the two most “on point” decisions regarding allocation of cleanup costs between military contractors and the U.S. government when it determined the cases were not comparable, clarified the applicability of those cases, and remanded the case to reconsider the appropriate allocation of cleanup costs between TDY and the U.S. government. Continue Reading

Ninth Circuit Holds National Park Service Has the Authority to Regulate Navigable Waters in Alaska’s National Parks and Prohibit the Use of Hovercraft (Again)

Whitney Jones RoyWhitney HodgesBy Whitney Jones Roy and Whitney Hodges on Posted in Environmental, Recent Cases - Environmental

Sturgeon v. Frost, et al., 872 F.3d 927 (9th Cir. 2017).

In September 2011, moose hunter John Sturgeon brought an action against the National Park Service (“Park Service”), alleging it inappropriately banned him from using a hovercraft to hunt moose on the Nation River in the Yukon-Charley Rivers National Preserve (“National Preserve”). Id. at 929. On remand from the Supreme Court, the decision analyzes which entity is permitted to decide this matter after the Supreme Court rejected an earlier circuit decision supporting the ban. The court’s ruling affirms congressional intent to permit Park Services authority to manage navigable waters in Alaska’s national parks, especially those parks meant to preserve wild rivers, and describes the balance between state and federal jurisdiction. Continue Reading

After 9th Circuit Ruling in Hawai‘i Wildlife Fund v. County of Maui, EPA Considers ‘Clarifying’ Clean Water Act Coverage for Discharges Via Groundwater

James RuskKeith GarnerBy James Rusk and Keith Garner on Posted in New Rules and Legislation, Recent Cases - Natural Resources and Endangered Species

A recent Ninth Circuit ruling that pollutants reaching waters of the United States through groundwater may trigger Clean Water Act liability has prompted the U.S. EPA to consider clarifying its position on the subject. The Ninth Circuit held last month, in Hawai‘i Wildlife Fund v. County of Maui, that the Act applies to “indirect discharges” from point sources, such as wells, that eventually make their way to surface waters. Though the Ninth Circuit is not the first federal court to hold that indirect discharges require a permit under the Act, the EPA responded by seeking public comment on whether it should clarify previous statements addressing this topic. The County of Maui subsequently filed a petition on March 1 for en banc rehearing of the Ninth Circuit panel’s opinion. Continue Reading

California Legislation Guide for Developers

Alfred Fraijo Jr.Alexander RobinsonBy Alfred Fraijo Jr. and Alexander Robinson on Posted in New Rules and Legislation

Last fall, Governor Jerry Brown signed into law a package of 15 bills in response to the state’s housing shortage and affordability crisis. These bills came into effect on January 1st, 2018. The bills have important implications for development projects in California. Here’s what the latest legislation means for your projects: Continue Reading

Under the Radar Changes to Proposition 65 – OEHHA Issues New “Guidance” For Web Purchases (Is it an Illegal “Underground Regulation”?)

Whitney Jones RoyJeffrey ParkerBy Whitney Jones Roy and Jeffrey Parker on Posted in Environmental

If your products are sold online or you operate a website with sales to consumers in California, these changes will impact whether you can obtain “safe harbor” protection under Prop 65.

Over a year after adopting new regulations—which were crafted through an exhaustive 3 year rulemaking process of public workshops, public comments, and revisions to address stakeholders’ concerns—California’s OEHHA (Office of Environmental Health Hazard Assessment) issued a guidance document purporting to change the answer to the question of whether a website warning is sufficient to qualify for “safe harbor” protection or whether a separate type of warning must be provided to the consumer in addition to the website warning. OEHHA, the state entity charged with managing Prop 65, quietly changed its position on the subject and offered so-called “guidance” that imposes much more onerous obligations. If you have already assessed whether you company is in compliance and ready for the new regulations, you should consider reviewing them again. Continue Reading

Tenth Circuit Holds Bureau of Land Management Improperly Relied On Unsupported and Irrational Assumption in Analyzing Environmental Impacts of Coal Mining Leases

Whitney Jones RoyWhitney HodgesBy Whitney Jones Roy and Whitney Hodges on Posted in Environmental, Land Use and Entitlements, Recent Cases - Land Use and Entitlements

WildEarth Guardians v. United States Bureau of Land Management, et al., 870 F.3d 1222 (10th Cir. 2017). WildEarth Guardians and the Sierra Club (collectively, “Plaintiffs”) brought a claim under the Administrative Procedure Act (the “Act”) against the Bureau of Land Management’s (BLM), challenging the BLM’s decision to grant four coal leases in Wyoming’s Powder River Basin. The basin accounts for almost 40 percent of the United States’ total coal production, and the subject leases would extend the life of two mines that provide almost 20 percent of the United States’ annual domestic coal production. Id. at 1227. Plaintiffs alleged the BLM’s determination that the leases would not have a significant effect on national carbon dioxide emissions, as compared to the “No Action” alternative, was arbitrary and capricious because (1) it was not supported by the administrative record and (2) the BLM failed to acquire information “essential to a reasoned choice among alternatives.” Id. at 1233–34. The Tenth Circuit agreed the decision was not supported by the record and remanded to the district court with instructions to enter an order requiring the BLM to revise its Environmental Impact Statement (EIS) and Records of Decision, but refused to vacate the leases themselves. Id. at 1240. Continue Reading

Tenth Circuit Takes Expansive View of the Definition of the Term “Mining,” Holding Wind Farm Project Needs Permit Prior to Commencement of Excavation in Tribal Mineral Estate

Whitney Jones RoyWhitney HodgesBy Whitney Jones Roy and Whitney Hodges on Posted in Environmental, Land Use and Entitlements, Recent Cases - Land Use and Entitlements

United States of America v. Osage Wind, LLC et al., 871 F.3d 1078 2017 WL 4109940 (10th Cir. Sept. 18, 2017). Causing heartburn for project applicants developing on tribal land, the Tenth Circuit reversed the District Court for the Northern District of Oklahoma’s grant of summary judgment and determined that the defendants’ large-scale excavation project, involving site modification and the use of excavated rock and soil in the installation of wind turbines, constituted “mining” under federal regulations addressing mineral development on Native American land. Id. at *1. This decision creates new obligations for developers, which could result in delay and additional costs. Continue Reading

Ninth Circuit Weighs In On Circuit Split Regarding CERCLA Contribution Claims After Settlement and The Statute of Limitation

Whitney Jones RoyWhitney HodgesBy Whitney Jones Roy and Whitney Hodges on Posted in Environmental, Recent Cases - Environmental

Asarco, LLC v. Atlantic Richfield Company, 866 F.3d 1108 (9th Cir. 2017). In a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution case, the Ninth Circuit addressed three issues of first impression for the circuit related to the ability to pursue contribution after settlement and the application of the statute of limitation. Specifically, the court looked at (1) whether a settlement agreement entered into under an authority other than CERCLA may give rise to a CERCLA contribution claim; (2) whether a “corrective” measure under the Resource Conservation and Recovery Act (RCRA), qualifies as a “response” action under CERCLA; and (3) what it means for a party to “resolve its liability” in a settlement agreement. Id. at 1113. The Ninth Circuit concluded that a settlement under RCRA may give rise to a CERCLA contribution claim and that corrective measures under a RCRA decree may constitute response costs under CERCLA. Id. at 1113–14. The court found that the CERCLA contribution claim at issue was not barred by the statute of limitation because plaintiff Asarco, LLC (Asarco) did not “resolve its liability” under a 1998 RCRA consent decree, and, therefore, could not have brought its contribution action until a subsequent CERCLA consent decree was issued. Id. Continue Reading

Corps and EPA Push Out Effective Date of Disputed Clean Water Rule

James RuskKeith GarnerBy James Rusk and Keith Garner on Posted in Natural Resources and Endangered Species, New Rules and Legislation

The U.S. Army Corps of Engineers and the Environmental Protection Agency published a rule postponing the effective date of the Clean Water Rule for two years, until February 6, 2020.

The Clean Water Rule defined the extent of jurisdiction under the Clean Water Act. It was supposed to have become effective on August 28, 2015, but was immediately challenged in multiple lawsuits and was eventually stayed nationwide by the Sixth Circuit. Disputes on the merits were put on hold while the courts decided whether the cases should proceed in the district courts or in the appellate courts. Continue Reading

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